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The Insolvency and Bankruptcy Code, 2016 is listed for passage in Rajya Sabha today. Last week, Lok Sabha passed the Code with changes recommended by the Joint Parliamentary Committee that examined the Code.[1],[2] We present answers to some of the frequently asked questions in relation to the Insolvency and Bankruptcy Code, 2016. Why do we need a new law?
As of 2015, insolvency resolution in India took 4.3 years on an average. This is higher when compared to other countries such as United Kingdom (1 year) and United States of America (1.5 years). Figure 1 provides a comparison of the time to resolve insolvency for various countries. These delays are caused due to time taken to resolve cases in courts, and confusion due to a lack of clarity about the current bankruptcy framework. What does the current Code aim to do? The 2016 Code applies to companies and individuals. It provides for a time-bound process to resolve insolvency. When a default in repayment occurs, creditors gain control over debtor’s assets and must take decisions to resolve insolvency within a 180-day period. To ensure an uninterrupted resolution process, the Code also provides immunity to debtors from resolution claims of creditors during this period. The Code also consolidates provisions of the current legislative framework to form a common forum for debtors and creditors of all classes to resolve insolvency. Who facilitates the insolvency resolution under the Code? The Code creates various institutions to facilitate resolution of insolvency. These are as follows:
What is the procedure to resolve insolvency in the Code? The Code proposes the following steps to resolve insolvency:
What are some issues in the Code that require consideration?
A version of this blog appeared in the Business Standard on May 7, 2016.
The last few months saw a number of allegations of corruption in issues such as contracts for the Commonwealth Games, allocation of 2G Spectrum, and the building of the Adarsh housing society. Professor Kaushik Basu, the Chief Economic Adviser to the Ministry of Finance, has proposed a modification in order to make the anti-corruption law in the country more effective. The Prevention of Corruption Act, 1988 penalizes both bribe giving and taking. Bribe giving is punishable under the Act with imprisonment ranging between six months to five years. He argues that bribe giving should be legalized. Professor Basu distinguishes “harassment bribes”, which he defines as “bribes that people often have to give to get what they are legally entitled to” from the remaining, “Non-Harassment Bribes” which would involve illegal benefits accruing to the bribe giver at a potential cost to the public interest. He argues that legalization of harassment bribes would reduce the nexus between the giver (victim) and the taker of a bribe. Giving complete immunity to the bribe-giver would ensure higher reporting and co-operation of the giver in bringing to justice the bribe taker. The present law acts as a deterrent to reporting of bribery. Courts have also highlighted this issue. The High Court of Delhi in the Bharadwaaj Media Case (2007) observed that a “bribe giver is normally on the mercy of the officials and babus who compel him to pay bribe even for lawful work.” The Court further observed that “Instead of expressing gratefulness to the persons who expose corruption, if the institutions start taking action against those who expose corruption, corruption is bound to progress day and night.” It can be inferred from the judgement that steps ought to be taken to provide protection to those exposing bribery. The proposed legalization of bribe-giving may result in increased reporting of bribery and co-operation of the victim during prosecution. The fear that a bribe giver may report the public official could reduce corruption, at least in terms of harassment bribes. However, this proposal may reduce the stigma attached to bribe-giving and result in corrosion of morality. Much of the recent debate around corruption and the Lok Pal Bill revolve around effective prosecution. This paper looks at the incentive structure for reporting bribe-giving, and merits public debate.
